Strippers to the Supremes

Texas Supreme Court gets into major First Amendment case

So the Texas Supreme Court became the latest legal entity to be dragged into the slow-burning legal argument over the $5 stripper surcharge – AKA the titty tax – after it heard the latest round of arguments in San Antonio yesterday.

Texas Entertainment Association, Inc., and Karpod, Inc. v. Susan Combs, et al has been circling the courts for two years as the state has tried to defend a failed tax bill. Yet again, the attorney general's office changed its tactics on defending the tax: So far, it's been about nudity, then nudity and alcohol, then just alcohol, and now we're back to nudity again. The superficial issue is whether the state can tax strip joints, but the reality is that it's an overly-broad law that could have catastrophic first amendment implications.

The Texas Legislature passed House Bill 1751 in 2007 as a way to pay for sexual assault recovery services and the now-defunct Texas health opportunity pool. Its clear First Amendment violations have been pointed out in the lower courts, and the state has tried to unsuccessfully defend it. Efforts to correct the law last session failed miserably when bill backers the Texas Association Against Sexual Assault dug their heels in (if they'd have spent as much time lobbying House Appropriations and Senate Finance as they have protecting an unconstitutional law, we may have had some actual funds for sexual abuse survivor programs.) So now it's with the highest court in the state.

The issues have been getting obscured by salacious coverage, and it really doesn't help when the Statesman ran a story today posing the question "Is exotic dancing, performed partially clothed or fully nude, a form of free speech protected by the U.S. Constitution? Strip club owners insist that it is." Yes, strip club owners and the U.S. Supreme Court. The unfortunate problem for those opposing the tax is that the Texas Supremes are not as enamored of the fact that naked performances are still protected free speech as SCOTUS is.

The bigger issue for the state is that there are serious and unresolved questions about the law under the Texas Constitution. So far, the legal questions have revolved around the First Amendment issues because they are regarded amongst lawyers and jurists trying to make a reputation as (pardon the pun) sexy. However, the surcharge is, at its core, an occupation tax and therefore a quarter of all funds raised should go to public schools. The tax doesn't do that, so it violates the state constitution.

However, don't expect anything to happen any time soon. The Texas Supremes could take up to two years to issue a ruling. Unless they order it back down to a lower court (not impossible, due to the state constitutional questions) then the losing party is likely to try to take it all the way to the U.S. Supreme Court. It could take that court years to decide whether or not they actually take it and, if they do, years more to make a ruling.

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